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The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath.
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Wednesday, May 20, 2009

Lethal Injection

Law commission report proposes lethal injection for the death penaltyVijay Hiremath

India is currently one of only 83 countries retaining the death penalty. In India, the death penalty is imposed by way of hanging or shooting. Recently, the Law Commission of India circulated a document entitled 'Consultation Paper on Mode of Execution of Death Sentence and Incidental Matter'. This document contained a questionnaire polling opinions on methods of execution. The questionnaire however, neither questions the use of the death penalty itself nor whether this method of punishment is necessary and justified.

The 'Consultation Paper' has been confined mainly to the following three issues: the method of execution in the death sentence; the process of elimination of difference in judicial opinion among judges of the apex court in passing the sentence of death penalty; and the need to provide to the accused a right of appeal to the Supreme Court in such cases.

Method of executionIn India, the death sentence is currently executed through hanging or shooting. The Criminal Procedure Code dictates that hanging should be the mode of execution and the Army Act, Navy Act, and Air Force Act dictate that the mode of execution for all persons sentenced to death should be shooting.

In Deena V. Union of India (1983)4 SCC 645, the apex court held that the execution of death should satisfy the following criteria: 1. It should be as quick and simple as possible.2. The act of execution should produce immediate unconsciousness passing quickly into death.3. It should be decent.4. It should not involve mutilation.

Execution by hanging does not meet any of these requirements. There have been several cases reported where hanging has not immediately resulted in a broken neck and thus the convict is left to slowly strangle to death. This strangling results in the convict's eyes popping almost out of his head, his tongue swelling up and protruding from his mouth. In cases where the neck is in fact broken, the rope often tears large portions of the convict's flesh and muscle from that side of the face where the noose is. In many cases, the convict will end up urinating on himself and defaecating before death. The prisoner remains dangling from the end of the rope for 8-14 minutes before a doctor climbs up a small ladder and listens to his heartbeat with a stethoscope and pronounces him dead. Given these facts, it is clear that hanging is neither a quick and simple nor a decent method of execution as it involves mutilation of the body and, in some cases, prolonged suffering and torture before death.

Lethal injection is the method of execution currently being contemplated by the Law Commission. The proposition for using this method was first introduced in a medico- legal journal in New York, USA in 1888. In 1977, this proposition was re-introduced by Dr Stanley Deutsch, of the Oklahoma Medical School. Lethal injection is the primary method of execution used in the USA. As per the description provided in the Consultation Paper of the Law Commission, this method of execution involves the prisoner being secured on a gurney with lined ankle and wrist restraints. A cardiac monitor and a stethoscope are attached to the prisoner, and two saline intravenous lines are started, one in each arm. The saline intravenous lines are turned off, and sodium thiopental is injected, causing the inmate to fall into a deep sleep. The second chemical agent, pancuronium bromide, a muscle relaxant, follows. This causes the inmate to stop breathing due to paralyses of the diaphragm and lungs. Finally, potassium chloride is injected, stopping the heart.

This method, of all those available, appears to be the quickest and least painful. However, the reality is that even this method can result in cruel and unusual suffering. Amnesty International has documented numerous 'botched' executions involving lethal injection. The case of Scott Carpenter, who was executed in Oklahoma on May 18, 1997 serves as a prime example of this. Two minutes after the injection was administered, Carpenter started making noises; his stomach and chest had 'palpitations', and his body suffered 26 violent convulsions in the process. He was officially declared dead only 11 minutes after the injections were first administered.

The role of doctors in all methods of execution is very important. In cases where execution is by hanging, the doctors only check whether the person is actually dead or not. In cases of lethal injection, a medical expert is required to administer the injection and as such the doctor is directly involved in the execution. In these cases, the line between a medical practitioner and an executioner is crossed. Internationally, there have been many medical associations that have taken a stand that no medical practitioner should be asked to take part in bringing about the death of a convict. The British Medical Association held that it was opposed to any proposal to introduce a method of execution that would require the services of a medical practitioner.

The principle behind this reasoning is that the medical profession is intended to save lives, not to bring an end to them. It seems only appropriate that the Indian Medical Association and all other Indian organizations responsible for the practice of medicine in this country should state their position on this issue and convey their sentiments to the Law Commission of India. Our medical practitioners, sworn to protect lives, should not be participating in the execution of any individual, whatever the circumstances. A statement of this kind on the part of medical associations would greatly advance the move for complete abolition of the death penalty in India.

It has been proven through research that the death penalty does not functionally act as a deterrent to violent crime. The crime rate in Canada, where the death penalty was abolished in 1998, has substantially reduced since the abolition. At the same time, in the USA, a country where the socioeconomic climate is very similar to that of Canada but which has retained the death penalty, the crime rate has been consistently on the rise for a number of years.

Unanimity in decision It is essential, in cases where the penalty is so severe, that there be unanimity among the judges awarding the death penalty. However, there are often differences of opinion among apex court judges in such hearings. Even if only a minority of the judges differ in their opinion, in these cases it is not reasonable to impose the death penalty. Rather, such convicts should be granted life imprisonment. However small the voice of opposition may be among the judges, such convicts should be granted some form of mercy.

Right to appealIt is of utmost importance that in all cases where the death sentence is imposed or confirmed by the High Court there must be an automatic appeal made directly to the Supreme Court. Every convict who is facing a death sentence is entitled to a chance to appeal his conviction and save himself from the gallows. There are many mitigating circumstances that may have resulted in a person being wrongly convicted and sentenced to death. The accused may be poor and may not have received competent representation at the time of the trial. In any case where the state is electing to execute and thus terminate the life of one of its citizens the decision must be confirmed, as a matter of prudence, by the highest court of the land, and that too, unanimously.

The death penalty has existed since the beginning of recorded history. In all this time, it has never proven to be effective as a deterrent to crime in the way that popular perception would have it. No method of executing a human being can be termed as decent and humane because killing, whether it is done by the state or by an individual, constitutes an inhumane act in and by itself. The only humane solution that the Law Commission should offer the Government of India is the complete abolition of the death penalty.

This summary with comments is carried to generate public debate on the subject. Readers are encouraged to write in with their comments on the summary as well as the main report which is available on the internet athttp://lawcommissionofindia.nic.in/cpds1.pdf

The article was first published in Indian Journal of Medical Ethics in Jul-Sep 2003 --------------------------------------------------------------------------------

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The Death Penalty Scenario in India

The Indian government is committed to the retention of the death penalty. In December 2007 India was among the minority of countries who voted at the United Nations General Assembly against a moratorium on executions.

India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. It is mandatory for second convictions for drug trafficking offences.

Death sentences are carried out by hanging. In 1983 the Supreme Court upheld the constitutionality of this method, stating that it: “involves no barbarity, torture or degradation.”

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement.

Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

There is very little information on the number of people sentenced to death in India. According to the National Crime Records Bureau, 1,455 convicts were awarded the death penalty during the period 2001-2011. The actual figure of sentences originally awarded is much higher considering the death sentences of 4,321 convicts came to be commuted to life imprisonment in the said period.

That the imposition of death penalty is ineffective in controlling crime rate or deterring crimes, is widely known and even accepted on the basis of exhaustive research and statistics. Inherently there are serious flaws in capital sentencing. DNA evidence is not used, death sentences can be given by a majority rather than a unanimous bench and many convictions for death sentences are based entirely on circumstantial evidence. This coupled with a faulty criminal law enforcement system and admittedly high corruption levels in the police force investigating the crime, increases the chances of false convictions. In such a scenario, the correctness of conviction resulting in the ultimate sentence of capital punishment relies on a system of trial and error.

Also, the handing over of the death penalty is dependent on various variable factors such as existing biases amongst law enforcers, social biases, media reports and public outcry, social and financial status of the accused, quality of legal representation and last but not the least, the bent of mind of the judges.

During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. It has enabled judges to justify imposing sentences of death in an arbitrary manner, reinforcing the deeply flawed character of capital punishment in India today.

Recently in April 2013, in a petition filed by Devender Pal Singh Bhullar in the Supreme Court, delay in deciding his clemency plea was ruled out as a ground to commute his death sentence to life imprisonment. Devender Pal Singh Bhullar had approached the Supreme Court in 2011 after the President rejected his mercy petition after 8 years. The said judgment may have a far reaching effect on similar cases where mercy petitions have remained pending with the President for inordinate periods of time.